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Retail Suppliers Ask Regulator For Waiver Of TPV Requirement For Certain Sales

November 17, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

Several retail natural gas suppliers have petitioned the Public Utilities Commission of Ohio for a waiver of the requirement to obtain third-party verification for all telesales.

The suppliers said Rule 4901:1-29-06(E)(1), OAC, appears to require third-party verification for telephonic enrollments by retail natural gas suppliers and governmental aggregators even if the entire call is recorded by the supplier or aggregator and the recording is archived and retained as required by Rule 4901: 1-29-06(E)(2)(b), OAC.

The suppliers sought a waiver of the TPV requirement with respect to customer-initiated inbound calls in which the entire sales call is recorded

The current rule states that, "To enroll a customer telephonically, a retail natural gas supplier or governmental aggregator, shall make a date- and time-stamped audio recording of the sales portion of the call, if the customer is enrolled, and before the completion of the enrollment process, a date- and time- stamped audio recording by an independent third-party verifier that verifies, at a minimum, the following ..."

"It was not until after the deadline for filing for rehearing had passed that several of the Applicants first noticed that the new version of the rule could be interpreted to mean that TPV was required for telephonic enrollment even if the CRNGS supplier had recorded the entire call. Their initial reaction was that this could not have been the Commission's intent because it would make no sense to require TPV for telephonic enrollment where the entire call had already been recorded by the retail natural gas supplier or governmental aggregator, a measure that provides indisputable evidence as to whether the supplier representations and customer acknowledgments required by the subparagraphs of Paragraph (E)(1) were made before the enrollment was completed," the suppliers said

Reciting the history of the rulemaking, the suppliers said that "there are strong indications that, despite the language that made its way into the new version of Paragraph (E)(1) of Rule 4901:1-29-06, OAC, the Commission's actual intent was not to require TPV for telephonic enrollment where the entire call is recorded by the retail natural gas supplier or governmental aggregator."

"[N]o participant in the rulemaking proceeding ever suggested that that [sic] a separate, recorded TPV process was necessary where the supplier or aggregator recorded the entire call," the suppliers said

The suppliers noted that in PUCO's rulemaking order, the Commission's discussion, "suggests that the Commission viewed recording the entire call as the solution to the problem of disputes over what representations were actually made during the call."

"Moreover, the Commission made no mention in its Order or Entry on Rehearing of any change to the existing rule other than imposing the requirement that the sales portion of the call be recorded. If the Commission actually intended to require TPV in instances where the entire call is recorded by the supplier, one would assume that the Commission would have explained this new requirement in its Order. That the Order is silent on this subject suggests that the Commission recognized that, unlike door-to-door solicitation, where the need for TPV is obvious, in the case of telephonic enrollment, there is no reason to require TPV where the supplier records the entire call. Recording and archiving the entire call provides irrefutable evidence as to what was said if there is a subsequent dispute regarding the representations made to a customer," the suppliers said

The suppliers further noted that the electricity rules, adopted at the same time as the gas rules, do not require a TPV if the entire sales call is recorded

"[E]ven if the Commission did, in fact, intend to require TPV for telephonic enrollment in instances where the entire call is recorded by the supplier or aggregator, there are other reasons for finding that good cause exists for granting the requested waiver, not the least of which is the adverse impact the rule has on both CRNGS providers and potential customers while providing no additional consumer benefit," the suppliers said

"Applicants seeks a waiver of the TPV requirement for telephonic enrollment only with respect to customer-initiated inbound calls. These calls are almost always generated in response to written offer that the prospective customer has received as a result of a CRNGS provider mail campaign or as a result of the prospective customer's review of the apples-to-apples chart on the Commission website. That the prospective customer initiates the call is significant because it demonstrates that the prospective customer has acted affirmatively to explore the offer, thereby creating a far different dynamic than exists when a prospective customer receives a cold call out of the blue from a telemarketer that attempts to convince the customer to enroll with a particular supplier," the suppliers said

The suppliers said that, "Inconveniencing customers who have made the decision to accept an offer by placing them on hold to await a third-party verifier and by requiring them to provide the very same acknowledgments they have just given to the call center representative diminishes the customer experience and may sour the prospective customer on shopping. Indeed, the Applicants that have implemented TPV for telephonic enrollments to comply with the new version of Rule 4901:l-29-06(E)(l), OAC, have received numerous complaints from customers venting their frustration with the process. Moreover, a number of prospective customers that are placed on hold while being transferred to a third-party verifier or become disenchanted with the memory test they are subjected to as a part of the TPV process simply hang up, thereby preventing the completion of the enrollment. Further, if a prospective customers [sic] cannot remember if a particular required representation was made by the call center representative, the third-party verifier will terminate the call, thereby forcing the customer to start over even though it was the customer's stated intention to accept the offer. This outcome can only add to the customer's frustration and increase the likelihood that the customer will not be enrolled."

"[I]t is difficult to comprehend why the rule requires this duplicative process in the case of telephonic enrollments resulting from customer-initiated calls when the customer could have enrolled in response to the same offer by mail or via the internet, methods which require no corroborative customer acknowledgments before a third party," the suppliers said

"Applicants would emphasize that the requested waiver would apply only to customer-initiated inbound calls and not to enrollments resulting from outbound telemarketing calls. The Commission should adopt a strict definition of an 'inbound call' for purposes of the waiver and should make it clear that the transfer of a call by a telemarketer to a call center representative after the prospective customer has expressed interest in an offer does not constitute an inbound call covered by the waiver," the suppliers said

Filing the petition were Direct Energy Services, LLC, Dominion Energy Solutions, Inc., Interstate Gas Supply, Inc., and SouthStar Energy Services, LLC

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